Allowed

Sanjeev Kumar v. State of U.P. and Others

Allahabad HC19 Apr 2019WRIA/42643/2010

Case brief

AI extract

What is this about?

Petitioner challenged termination of his fixed-term service as a Safai Karmi without prior inquiry. Relying on precedents that punitive termination requires natural justice, the court set aside the termination order and restored the petitioner's service, denying back wages due to prolonged absence.

What did the court decide?

Termination orders set aside; petitioner reinstated; no back wages granted.

Sanjeev Kumar Vs State of U.P. and Others — Service and Employment | Allahabad HC (2019)

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Court No. - 11

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Case :- WRIT - A No. - 42643 of 2010

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Petitioner :- Sanjeev Kumar Respondent :- State Of U.P. And Others Counsel for Petitioner :- Pt. Ashutosh Shukla,Manoj Kumar Singh,P.S. Chauhan,R.S.P. Rao,Rajesh Kumar Singh,S.M. Upadhyay,Santosh Kumar Singh,Upendra Upadhyay,V.K.Maheshwari Counsel for Respondent :- C. S. C.

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Hon'ble Prakash Padia,J.

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The petitioner has preferred the present writ petition challenging the order dated 10.12.2009 passed by District Panchayat Raj Officer, Bijnor as well as the order dated 5.5.2010 passed by the District Magistrate, Bijnor.

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Counter and Rejoinder Affidavits have been exchanged between the parties and with the consent of learned counsel for the parties, this petition is heard finally and disposed of at the admission stage itself.

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Facts in brief as contained in the writ petitioner are that an advertisement was issued by the District Panchayat Raj Officer, Bijnor for appointment of 3000 Safai Karmi. It is contended that Safai Karmi Service Rules Manual and Group D Employees Rules 1985 were adopted by the respondents for the purpose of appointment of Safai Karmies. In this regard, a Government Order was issued by the Director, Panchayat Raj U.P. on 12.06.2008 (copy of it is appended as Annexure 3 to the writ petition). The petitioner was appointed as Safai Karmi vide letter of appointment dated 19.01.2009. On the basis of same, he joined the aforesaid post. From the perusal of the appointment letter, it is clear that the appointment letter was issued to appoint the petitioner on temporary basis till 28.02.2009. It is contended by learned counsel for the petitioner that even after the aforesaid date i.e. 28.02.2009, the petitioner was permitted to work and paid his salary till the time of his services were terminated by the District Panchayat Raj Officer, Bijnor vide its order dated 10.12.2009.

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The arguments advanced on behalf of the petitioner is that a major penalty has been imposed upon the petitioner but before imposing the major penalty, no disciplinary proceedings whatsoever have been initiated against the petitioner. It is further contended that

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no notice or opportunity whatsoever has been provided to the petitioner before passing the order of termination. As such, the order of termination is in violation of principles of natural justice and the same is liable to be set aside.

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It has been contended on behalf of the respondents that the appointment of the petitioner was made for a fixed term period and the period of service of the petitioner came to end after expiry of the tenure, as such there is no requirement to comply with the provisions of Articles 14 and 16 of the Constitution of India. Even otherwise, law in this connection is well settled as has been laid down in Reji Kumar and others Vs. Director of Health Services, Kerala, reported in (2009) 16 SCC 385 that fixed term appointment came to end after completion of tenure of work, if there is no necessity of employees or their services.

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A counter affidavit has also been filed on behalf of the respondents. It is contended in paragraph 7 of the counter affidavit that services of only 15 Safai Karmies who were not performing their duties and the order impugned was passed after taking disciplinary proceedings against the petitioner including 14 other such temporary employees. It is further stated in paragraph 7 of the counter affidavit that against the petitioner, a complaint was made by the Gram Pradhan of village Gokulpur Kasam, District Bijnor. In pursuance of the aforesaid complaint District Panchayat Raj Officer, Bijnor made inspection and in the inspection, the petitioner was found absent from duty, thereafter recommendations were made to terminate the services of the petitioner.

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In rejoinder affidavit, it is contended that a false report was submitted by the Gram Pradhan against the petitioner to the authorities concerned. It is further contended that if it is found that the work and conduct of the petitioner was not satisfactory, inquiry was liable to be contemplated against the petitioner. It further appears from the perusal of the record that against the order of termination the petitioner earlier preferred a writ petition being Writ A No.731 of 2010, the said writ petition was finally disposed of by this Court vide

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its order dated 22.2.2010 giving the liberty to the petitioner to make a representation ventilating all his grievances before District Magistrate concerned. The District Magistrate Bijnor is directed to decide the same by passing a reasoned and speaking order. After the aforesaid judgement was delivered, another order was passed by the District Magistrate Bijnor on 5.5.2010 rejecting the representation of the petitioner. The petitioner has challenged the aforesaid two orders namely the order of termination dated 10.12.2009 passed by the District Panchayat Raj Officer, Bijnor as well as order dated 5.5.2010 passed by the District Magistrate Bijnor in this writ petition.

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In reply it is contended on behalf of the petitioner that the termination order is not a simplicitor termination but as a major punishment. Therefore, the service of the petitioner would not have been dispensed with without following principles of natural justice. It was further contended by the counsel for the petitioner that along with the petitioner, services of 14 other Safai Karmies were terminated. One of the aforesaid Safai Kari namely Kumari Sheetal approached this Court by filing writ petition being Writ A No.42738 of 2009 (Kumari Sheetal Vs. State of U.P. and others) the said writ petition was allowed by a Co-ordinate Bench of this Court vide its judgment and order dated 22.5.2015. The order passed in the aforesaid writ petition is reproduced below:-

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“The respondent no.2 issued an advertisement in the year 2008 calling application for appointment of Safai Karamchari. In response to the said advertisement the petitioner applied, she was found suitable in the selection and she was appointed on 10.11.2008 as Safai Karamchari. A copy of the appointment letter is annexed as Annexure-1 to the writ petition.

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By impugned order dated 23.7.2009, petitioner's services has been dispensed with treating her temporary employee.

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A counter affidavit has been filed wherein it is stated during the inspection it was found that the petitioner was absent and there were large number of complaint by the villagers about the work of the petitioner. It is also mentioned that the Assistant Development Officer (Panchayat) Vikas Khund, Nazibabad, Bijnor has recommended the strict action against the petitioner. In view of the above the petitioner's services were dispensed with under the provisions of U.P.Temporary Government Servant (Termination of Services) Rules, 1975.

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Alongwith the counter affidavit recommendation of the aforesaid Officer and complaints have also been brought on the record.

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It is contended on behalf of the petitioner that the termination order is not a simplicitor termination but as a measure of punishment, therefore the services of the petitioner could not have been dispensed with without following the principle of natural justice. It is further contended that petitioner was entitled for the fair hearing before decision was taken.

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Learned Standing Counsel submits that the impugned order is a termination simplicitor. Since the petitioner was a temporary employee, therefore he was not entitled for any opportunity.

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Learned counsel for the petitioner has relied on the judgment of this Court in Paras Nath Pandey v. Director, North Central Zone Cultural Centre, Allahabad (Special Appeal No. 798 of 2000), wherein it has been held that the service of a temporary employee can be dispensed with without any inquiry if the order is not stigmatic. However, the Court in certain cases can lift the veil to find out whether the misconduct of an employee was foundation or it was motive of an employer terminating the services of an employee.

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In the present case from the counter affidavit itself it is clear that the Assistant Development Officer has made a strong recommendation for the dispensing the services of the petitioner. The respondents have also relied on several complaints against the petitioner. Thus it is clear that the allegations against the petitioner was foundation of the termination and it was not a termination simplicitor. The respondents themselves have brought on the record various complaints and the allegations against the petitioner.

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The Supreme Court in the case of State of U.P. v Kaushal Kishore Shukla (1991) SCC 691 at page 698 has laid down the law in the following terms:-

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"A temporary government servant has no right to hold the post, his services are liable to be terminated by giving him one month's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary government servants. A temporary government servant can, however, be dismissed from service by way of punishment. Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory or that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary government servant. If it decides to take punitive action it may hold a formal inquiry by framing charges and giving opportunity to the government servant in accordance with the provisions of Article 311 of the Constitution. Since, a temporary government servant is also entitled to the protection of Article 311 (2) in the same manner as a permanent government servant, very often,

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the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment. It is now well settled that the form of the order is not conclusive and it is open to the court to determine the true nature of the order."

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In the present case, as noticed above the respondents have brought on the record various allegations and recommendation for taking action against the petitioner. In such a situation it was obligatory on the part of the the appropriate authority to conduct an inquiry against the petitioner and after giving her opportunity the appropriate authority ought to have passed the order.

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In addition to above, there is nothing on the record that the respondents have issued any memo or letter asking her to improve her work or conduct.

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In view of the above the termination order dated 23.7.2009 passed by the second respondent is set aside, leaving it open to the respondents to take fresh action against the petitioner in accordance with law.

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Writ petition is allowed.

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The petitioner shall be reinstated in service. As regards the back wages, in view of the fact that petitioner has not worked for the last four years, she is not entitled for any back wages on the principle of no work no pay.

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No order as to costs.”

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Heard Sri Upendra Upadhyay, learned counsel for the petitioner and learned Standing Counsel for the respondents.

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The controversy involved in the present writ petition is absolutely identical. In view of the same, the order of the termination dated 10.12.2009 passed by the District Panchayat Raj Officer, Bijnor/respondent No.2 as well as order dated 5.5.2010 passed by District Magistrate/respondent No.3 are set aside leaving it open to the respondent to take a fresh action against the petitioner if so advised in accordance with law.

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With the aforesaid observation, the writ petition is allowed.

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The petitioner shall be reinstated in service. As regard the back wages, in view of the fact that the petitioner has not worked for the last eight years, he is not entitled for any back wages on the principle of no work, no pay.

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No order as to costs.

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Order Date :- 19.04.2019/saqlain

Sanjeev Kumar v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

Sanjeev Kumar v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

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